Finisar Corporation
FINISAR CORP (Form: S-8, Received: 08/12/2003 15:16:44)    
 
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As filed with the Securities and Exchange Commission on August 12, 2003

Registration No. 333-______

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

Finisar Corporation


(Exact name of registrant as specified in its charter)
     
Delaware

(State or other jurisdiction
of incorporation or organization)
  94-3038428

(I.R.S. employer identification no.)

1308 Moffett Park Drive
Sunnyvale, CA 94089


(Address of principal executive offices)(Zip code)

Finisar Corporation
1999 Stock Option Plan and
1999 Employee Stock Purchase Plan


(Full title of the plan)

Stephen K. Workman
Senior Vice President, Finance,
Chief Financial Officer and Secretary
Finisar Corporation
1308 Moffett Park Drive
Sunnyvale, CA 94089


(Name and address of agent for service)

Telephone number, including area code, of agent for service: (408) 548-1000.

This registration statement shall hereafter become effective in accordance with Rule 462 promulgated under the Securities Act of 1933, as amended.

CALCULATION OF REGISTRATION FEE

                                 
Title of           Proposed maximum   Proposed maximum        
Securities to be   Amount to be   offering price   aggregate offering   Amount of
registered 1   registered 2   per share 3   price 3   registration fee

 
 
 
 
1999 Stock Option Plan Common Stock
    10,474,824     $ 1.68     $ 17,597,704.32     $ 1,423.65  
Par Value $0.001
                               
1999 Employee Stock Purchase Plan Common Stock
    750,000     $ 1.43     $ 1,072,500.00     $ 86.77  
Par Value $0.001
                               
TOTALS:
    11,224,824             $ 18,670,204.32     $ 1,510.42  


    1       The securities to be registered include options to acquire Common Stock.
 
    2      Pursuant to Rule 416(a), this registration statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend or similar transaction.
 
    3      Estimated pursuant to Rule 457 solely for purposes of calculating the registration fee. As to shares under the 1999 Stock Option Plan, the price is based upon the average of the high and low prices of the registrant’s Common Stock on August 8, 2003, as reported on the Nasdaq National Market. As to shares under the 1999 Employee Stock Purchase Plan, the price is based upon 85% of the average of the high and low prices of the registrant’s Common Stock on August 8, 2003, as reported on the Nasdaq National Market.

 


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PART II
Item 3. Incorporation of Documents by Reference
Item 4. Description of Securities
Item 5. Interests of Named Experts and Counsel
Item 6. Indemnification of Directors and Officers
Item 7. Exemption From Registration Claimed
Item 8. Exhibits
Item 9. Undertakings
SIGNATURE
EXHIBIT INDEX
EXHIBIT 5
EXHIBIT 23.2


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PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.      Incorporation of Documents by Reference

          Finisar Corporation (the “Company”) hereby incorporates by reference in this registration statement the following documents:

          (a) The Company’s annual report on Form 10-K filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), containing audited consolidated financial statements for the Company’s latest fiscal year ended April 30, 2003 as filed with the Securities and Exchange Commission on July 29, 2003.

          (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the document referred to in (a) above.

          (c) The description of the Company’s Common Stock contained in the Company’s Registration Statement on Form 8-A filed on November 8, 1999 under the Exchange Act, including any amendment or report filed for the purpose of updating such description.

          All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents.

Item 4.      Description of Securities

          The class of securities to be offered is registered under Section 12 of the Exchange Act.

Item 5.      Interests of Named Experts and Counsel

          Inapplicable.

Item 6.      Indemnification of Directors and Officers

          Section 102(b) of the General Corporation Law of the State of Delaware authorizes a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to a corporation or its stockholders for monetary damages for breach or alleged breach of the director’s “duty of care.” While this statute does not change a director’s duty of care, it enables corporations to limit available relief to equitable remedies such as injunction or rescission. The statute has no effect on a director’s duty of loyalty or liability for acts or omissions not in good faith or involving intentional misconduct or knowing violations of law, illegal payment of dividends or stock redemptions or repurchases, or for any transaction from which the director derives an improper personal benefit. As permitted by the statute, the Company has adopted provisions in its Certificate of Incorporation which eliminate to the fullest extent permissible under Delaware law the personal liability of its

 


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directors to the Company and its stockholders for monetary damages for breach or alleged breach of their duty of care.

          Section 145 of the General Corporation Law of the State of Delaware permits indemnification of officers, directors and other corporate agents under certain circumstances and subject to certain limitations. The Company’s Certificate of Incorporation and Bylaws provide that the Company shall indemnify its directors, officers, employees and agents to the full extent permitted by the General Corporation Law of the State of Delaware, including in circumstances in which indemnification is otherwise discretionary under such law. In addition, with the approval of the Board of Directors and the stockholders, the Company has entered into separate indemnification agreements with its directors, officers and certain employees which require the Company, among other things, to indemnify them against certain liabilities which may arise by reason of their status or service (other than liabilities arising from willful misconduct of a culpable nature) and to obtain directors’ and officers’ insurance, if available on reasonable terms.

          Section 145 of the General Corporation Law of the State of Delaware provides for indemnification in terms sufficiently broad to indemnify such individuals, under certain circumstances, for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.

          The Company’s Chief Executive Officer, Chairman of the Board and Chief Technical Officer and Senior Vice President, Finance and Chief Financial Officer have been named as defendants in a securities class action lawsuit filed against the Company and an underwriter in the Company’s initial public offering in November 1999 and a secondary offering in April 2000. These officers are likely to assert claims for indemnification in connection with that litigation. Other than the securities class action lawsuit, there is no pending litigation or proceeding involving a director, officer, employee or other agent of the Company in which indemnification is being sought nor is the Company aware of any threatened litigation that may result in a claim for indemnification by any director, officer, employee or other agent of the Company.

          The Company has obtained liability insurance for the benefit of its directors and officers.

Item 7.      Exemption From Registration Claimed

          Inapplicable.

Item 8.      Exhibits

          See Exhibit Index.

Item 9.      Undertakings

          The undersigned registrant hereby undertakes:

          (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

               (i) To include any prospectus required by Section 10(a)(3) of the Securities Act;

 


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               (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and

               (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

provided, however, that paragraphs (1)(i) and (l)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.

          (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

          (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

          The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

          Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 


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SIGNATURE

          Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Sunnyvale, State of California, on August 12, 2003.

     
    Finisar Corporation
 
     
 
    By: /s/ Stephen K. Workman

     Stephen K. Workman
     Senior Vice President, Finance,
     Chief Financial Officer and Secretary

 


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SIGNATURES AND POWER OF ATTORNEY

          The officers and directors of Finisar Corporation whose signatures appear below, hereby constitute and appoint Jerry S. Rawls and Stephen K. Workman, and each of them, their true and lawful attorneys and agents, with full power of substitution, each with power to act alone, to sign and execute on behalf of the undersigned any amendment or amendments to this registration statement on Form S-8, and each of the undersigned does hereby ratify and confirm all that each of said attorney and agent, or their or his substitutes, shall do or cause to be done by virtue hereof.

          Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated on August 12, 2003.

     
Signature   Title

 
/s/ Jerry S. Rawls   President, Chief Executive Officer and Director

  (Principal Executive Officer)
Jerry S. Rawls  
   
/s/ Stephen K. Workman   Senior Vice President, Finance, Chief Financial

  Officer and Secretary (Principal Financial and
  Accounting Officer
Stephen K. Workman    
     
/s/ Frank H. Levinson   Chairman of the Board of Directors

   
Frank H. Levinson    
     
    Director

   
Michael C. Child    
     
/s/ Roger C. Ferguson   Director

   
Roger C. Ferguson    
     
/s/ Larry D. Mitchell   Director

   
Larry D. Mitchell    

 


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EXHIBIT INDEX


     
4.1   Certificate of Incorporation of the Company is incorporated by reference to Exhibit 3.7 to the Company’s Annual Report on Form 10-K Report filed with the Securities and Exchange Commission on July 18, 2001
 
4.2   Bylaws of the Company are incorporated by reference to Exhibit 3.4 to the Company’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on December 21, 2000
 
4.3   Certificate of Elimination regarding the Company’s Series A Preferred Stock is incorporated by reference to Exhibit 3.8 to the Company’s Registration Statement on Form S-3 filed with the Securities and Exchange Commission on December 18, 2001
 
4.4   Certificate of Designation of the Company is incorporated by reference to Exhibit 99.2 to the Company’s Registration Statement on Form 8-A12G filed on September 27, 2002
 
5   Opinion re legality
 
23.1   Consent of Counsel (included in Exhibit 5)
 
23.2   Consent of Ernst & Young LLP, Independent Auditors
 
24   Power of Attorney (included in signature pages to this registration statement)

 


 
 
 

EXHIBIT 5

[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone: 650-833-2000 Fax: 650-833-02001 www.graycary.com

 

August 12, 2003

 

Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549

 

Ladies and Gentlemen:

As legal counsel for Finisar Corporation, a Delaware corporation (the “Company”), we are rendering this opinion in connection with the registration under the Securities Act of 1933, as amended, of up to 11,224,824 shares of the Common Stock, $0.001 par value, of the Company which may be issued pursuant to the exercise of options and purchase rights granted under the Finisar Corporation 1999 Stock Option Plan and 1999 Employee Stock Purchase Plan (together, the “Plans”).

We have examined all instruments, documents and records which we deemed relevant and necessary for the basis of our opinion hereinafter expressed. In such examination, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. We are admitted to practice only in the State of California and we express no opinion concerning any law other than the law of the State of California, the corporation laws of the State of Delaware and the federal law of the United States. As to matters of Delaware corporation law, we have based our opinion solely upon our examination of such laws and the rules and regulations of the authorities administering such laws, all as reported in standard, unofficial compilations. We have not obtained opinions of counsel licensed to practice in jurisdictions other than the State of California.

Based on such examination, we are of the opinion that the 11,224,824 shares of Common Stock which may be issued pursuant to the exercise of options and purchase rights granted under the Plans are duly authorized shares of the Company’s Common Stock, and, when issued against receipt of the consideration therefor in accordance with the provisions of the Plans, will be validly issued, fully paid and nonassessable.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement referred to above and the use of our name wherever it appears in said Registration Statement.

Respectfully submitted,

/s/ Gray Cary Ware & Freidenrich LLP

GRAY CARY WARE & FREIDENRICH LLP

 

 
 
 

EXHIBIT 23.2  

CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 1999 Stock Option Plan and the 1999 Employee Stock Purchase Plan of Finisar Corporation of our report dated June 3, 2003, with respect to the consolidated financial statements of Finisar Corporation included in its Annual Report (Form 10-K) for the year ended April 30, 2003, filed with the Securities and Exchange Commission.

Our audits also included the financial statement schedule of Finisar Corporation for the years ended April 30, 2003, 2002, and 2001 included in the Annual Report (Form 10-K) for the year ended April 30, 2003 filed with the Securities and Exchange Commission. This schedule is the responsibility of Company’s management. Our responsibility is to express an opinion based on our audits. In our opinion, the financial statement schedule referred to above, when considered in relation to the basic consolidated financial statements taken as a whole, presents fairly in all material respects the information set forth therein.

     
    /s/ ERNST & YOUNG LLP
 
     
 
Palo Alto, California
August 8, 2003